United States of America v. Joseph Kelly Baca

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,v.JOSEPH KELLY BACA, DEFENDANT-APPELLANT

The opinion of the court was delivered by: VIRGINIA A. Phillips United States District Judge

MEMORANDUM OPINION

I. BACKGROUND

Appellant Joseph Baca ("Appellant") pled guilty to a one-count information on November 30, 2010, charging him with violation of 18 U.S.C. § 701, possession of a false military identification card, a Class B misdemeanor. (Doc. No. 10.)*fn1 Appellant now appeals from the sentence imposed by the United States Magistrate Judge on that conviction.

Appellant first was sentenced on December 1, 2010, to a term of six months incarceration and three years probation. (Doc. Nos. 22, 33.) On December 8, 2010, the Government filed a Motion to Correct Sentence (Doc. No. 18), and Appellant was resentenced on December 14, 2010, to a three-year term of probation, with 16 listed terms and conditions, including 90 days imprisonment, split into two 45-day terms. (Doc. No. 23.) Appellant now appeals from certain of the conditions of his term of probation.*fn2

Appellant filed his Opening Brief ("AOB") on February 25, 20ll; Government-Appellee filed its Response Brief ("RB") on February 25, 20ll, and Appellant filed his Response Brief ("Response") on March 3, 20ll. The Court took the matter under submission without argument.

II. ISSUES ON APPEAL

Appellant does not challenge his conviction; rather, he challenges the condition of probation consisting of the imposition of 90 days of imprisonment, split into two 45-day periods, and eight of the other conditions of probation imposed. Appellant served 56 of the 90 days of imprisonment imposed; he applied ex parte for relief from serving the remainder of the custody portion of his sentence pending this appeal and this Court granted that ex parte application. (Doc. Nos. 4, 10.)

In addition to the manner in which the 90 day term of imprisonment was to be served, i.e., two 45-day periods, the other conditions of probation from which this appeal is taken are:

#6 The [Appellant] shall avoid all contact, directly or indirectly, with any person who is or who may become a victim or potential witness in the subject investigation or prosecution, including but not limited to [the then-14-year-old female identified in the closed San Bernardino Police Department criminal investigation];

#10 [Appellant] shall participate in a psychological counseling and/or psychiatric assessment, as approved and directed by the Probation Officer. The [Appellant] shall abide by all rules, requirements, and conditions of such program, including submission to risk assessment, evaluations, and physiological testing, such as polygraph and Abel testing;*fn3

#11 [Appellant] shall not possess or have access to either in the home, the workplace, or any other location, any device which offers internet access, except as approved by U.S. Probation in conjunction with the U.S. Marshal;

#12 [Appellant] shall not associate or have verbal, written, telephonic or electronic communication with any person who is less than the age of 18 except in the presence of another adult who is the parent or legal guardian of the minor, except with respect to his own minor children;

#13 [Appellant] shall not loiter/be found within 100 feet of any school yard, park playground, arcade or other place primarily used by children under the age of 18, except with respect to the education and care of his own minor children;

#14 [Appellant] shall not be employed by, affiliate with, own, control, or otherwise participate directly or indirectly in conducting the affairs of any daycare facility, school, or other organization dealing with the care, custody, or control of children under the age ...

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